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Gaal v. BJC Health System

Court of Appeals of Missouri, Eastern District, Division Four

December 10, 2019

CAROL GAAL, Appellant,

          Appeal from the Circuit Court of the City of St. Louis 1522-CC11297-01 Honorable Bryan L. Hettenbach


          Robin Ransom, Judge.

         Carol Gaal ("Gaal") appeals from the trial court's entry of judgment after a jury's verdict in favor of BJC Health System ("BJC") on Gaal's suit for damages asserting wrongful discharge under theories of disability discrimination and retaliation under the Missouri Human Rights Act ("MHRA"). On appeal, Gaal asserts four points of error from the trial court's submission of BJC's verdict directors and instructions to the jury rather than hers, challenges the trial court's denial of her motion in limine, and asserts error from BJC's use of clips from a video deposition during closing arguments. We affirm.


         Gaal was employed by BJC as a senior accountant from 2006 until August 15, 2014, when BJC terminated her employment. She filed a petition for damages asserting wrongful discharge under the MHRA on two grounds. In Count I, she asserted her actual or perceived disability of chronic asthma, for which she had received Federal Medical Leave Act ("FMLA") leave, was a contributing factor in BJC's adverse employment actions against her, culminating in her termination. In Count II, she asserted BJC terminated her employment in retaliation for filing a charge of disability discrimination with the Missouri Human Rights Commission ("MHRC") and the Equal Employment Opportunity Commission ("EEOC"). She asserted damages for lost wages and benefits, and for mental and emotional distress.

         Viewing the relevant evidence in the light most favorable to the jury's verdict, the following evidence was adduced at trial. Jeffery Tillinghast, M.D., (Dr. Tillinghast) testified via deposition that he diagnosed Gaal with mild persistent asthma in April of 2008, which he stated meant her pulmonary function was greater than 80%. Dr. Tillinghast characterized Gaal's lung functions as "excellent" and stated she was "not very symptomatic." He testified Gaal's asthma was well controlled and "probably" did not substantially limit her from engaging in activities or from getting to work on time. However, he also testified Gaal might need to be tardy or absent from work up to six times a year because of her asthma. Likewise, regarding her asthma, Gaal testified she treats her asthma with daily Singulair pills, an inhaler she was supposed to use twice a day, and a rescue inhaler as needed. She stated that her asthma was triggered by cold, wind, extreme heat, cologne, cigarette smoke, and dust; and that stress worsened the impact of her asthma.

         Gaal testified to the following. In March 2012, she was experiencing stress at work from an unwelcome office relocation. Anticipating an increase in asthma symptoms, she emailed the Human Resources department ("HR") to submit documentation of medical treatment for prior asthma attacks and positing that her asthma might cause her to be late to work that week. On March 7, she had an asthma attack and left work early. She saw Dr. Tillinghast on March 8 for her asthma symptoms, and he recommended that she take a week off of work. Gaal agreed that her medical records stated her March 8 examination was "entirely negative" of asthma symptoms with clear lung fields, but she disputed the accuracy of this medical record. Connie Gasko ("Gasko") of BJC HR requested that Gaal have Dr. Tillinghast fill out FMLA paperwork, which he did for March 12-16, 2012. BJC approved the request for FMLA leave. After taking a week off of work, Gaal felt improved and was able to run in a five-mile road race on March 17. Dr. Tillinghast released Gaal to return to work with no restrictions beginning March 17.

         Gaal further testified that her asthma worsened in the winter of 2013-2014. The week of January 6, 2014, was the end of the fiscal year and the busiest week of the year. BJC was closed on Monday, January 6, 2014, due to winter weather conditions. Gaal did not go to work on Tuesday, January 7, and she was late into work on Wednesday, Thursday, and Friday. On Saturday January 11, Gaal and several other employees were required to go to work to meet year-end deadlines, but Gaal called to say she would be late because a pipe burst in her basement. Gaal's manager Valerie Gray ("Gray") was angry and told Gaal not to come in and her absence would be considered a no-show. During her testimony, Gaal characterized these absences and tardiness as being due to the effect of the weather upon her asthma; however, on cross-examination, Gaal agreed she did not report to BJC that her asthma was the reason for the absences on Tuesday and Saturday or her tardiness on Thursday. Rather, Gaal agreed that at the time she reported her absences to BJC she stated that she could not come in on Tuesday due to the snow, that she was late on Thursday due to shoveling, and that she would be late on Saturday due to a burst pipe. Further, Gaal agreed she did not apply for FMLA leave for her January absences until May after she had been disciplined and was afraid of losing her job.

         On January 17, 2014, Gaal was placed on a performance improvement plan ("PIP"), citing her lack of responsibility, poor customer service, and excessive tardiness. Gray provided Gaal with feedback from her clients, some positive and some negative. While clients noted Gaal was good at her job and with details, they characterized her as "usually abrasive and rude," lacking in common courtesy, and "argumentative, dismissive and demanding." Gaal testified that at a meeting about her PIP with Gray and Lori Schreiner ("Schreiner"), Gaal explained that her asthma constituted a disability but stated she could still perform her job, and Gray responded she "did not care" about Gaal's disability and pointed out that Gaal ran marathons, which Gaal understood to mean that BJC did not believe she had a disability. After she was placed on the PIP, Gaal stated she started leaving for work earlier and did not have any further tardiness despite the continuing winter weather conditions and her asthma. On cross-examination, Gaal agreed she had previously received a PIP in 2009 based on her failure to cooperate with co-workers and for taking long lunches. She also agreed that she received a below-average performance rating again in 2010 due to problems with relationships and communications with co-workers and the client and due to tardiness and taking long lunches.

         In April 2014, Gaal was denied a raise because she had been placed on a PIP that January. Accordingly, in May 2014 Gaal requested that Dr. Tillinghast fill out FMLA paperwork requesting intermittent FMLA leave and that he backdate the FMLA request to January 2014. In June 2014, BJC denied the request for backdated FMLA but granted intermittent FMLA going forward. Gaal agreed she never needed to use FMLA leave after BJC granted it. Gaal then filed a complaint with the MCHR on June 19, 2014, claiming BJC was treating her differently in the terms and conditions of her employment based on her disability, specifically referencing the January 2014 PIP and the denial of backdated FMLA leave. The complaint was sent to BJC's legal department, which marked it received on July 7, 2014.

         Marlene Jones ("Jones"), the Director of HR for BJC in 2014, testified to the following. Jones clarified that, even though an employee cannot be disciplined for taking FMLA-approved leave, the same employee can be disciplined for other conduct or behavior, such as substandard performance. After the January 2014 PIP, although Gaal's attendance improved, her behavior continued to be inappropriate and disruptive to her colleagues. On July 3, 2014, Jones received a recommendation from Gasko that Gaal's employment be terminated for the reasons that (1) BJC had received complaints from clients about Gaal, and a client had requested its account be reassigned from Gaal to someone else; (2) Gaal had refused to take on part of an assignment; and (3) Gaal's co-workers were requesting not to be required to work with Gaal.

         After July 3, Gaal's behavior continued to worsen. On August 7, Jones received an email from Gray that Gaal was again refusing to take extra work to help out colleagues, at which time Jones decided to terminate Gaal's employment, citing her behavior, her lack of teamwork, and her marginal performance. Jones testified that at the time of Gaal's termination, Gaal's attendance was not a problem, and Jones's decision to terminate Gaal was not due to Gaal taking FMLA leave or being tardy due to her asthma. Jones agreed she was aware by August 15 that Gaal had filed a complaint with the MCHR; however, she testified that Gaal's filing a complaint had nothing to do with Jones's decision to recommend Gaal's termination. BJC terminated Gaal's employment on August 15, 2014, for the stated reason of violating customer service expectations.

         Following trial, the jury entered a verdict in favor of BJC and against Gaal on her claims of disability discrimination and retaliation under the MHRA. This appeal follows.


         Point I(a)[1]

         In her first point on appeal, Gaal argues the trial court erred in submitting to the jury the verdict directing Instruction No. 6 tendered by BJC on disability discrimination, instead of Gaal's proposed verdict director under MAI 38.01(B). Specifically, Gaal argues the trial court misapplied the law, in that the submitted verdict director improperly limited Gaal's ability to meet all three possible definitions of a disability under the law, even though the evidence submitted at trial supported all possible definitions. We disagree.

         We review de novo the question of law of whether a jury was properly instructed, viewing the record in the light most favorable to the submission of the instruction. Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010). Any issue submitted to the jury in an instruction must be supported by substantial evidence, which is evidence that is probative to the issues and assists the jury in deciding the case. Id. To succeed on a claim of instructional error, the party challenging the instruction must show the instruction misdirected, misled, or confused the jury, resulting in prejudice. Powderly v. S. Co. Anesthesia Assocs., Ltd., 245 S.W.3d 267, 276 (Mo. App. E.D. 2008). We will not reverse a jury verdict on the basis of instructional error, including the refusal to give an instruction, unless the error resulted in prejudice. Romeo v. Jones, 144 S.W.3d 324, 330 (Mo. App. E.D. 2004).

         Section 213.055.1(a), [2] provides, as relevant to the issues on appeal, that it "shall be an unlawful employment practice" for an employer to discharge any individual because of that individual's disability. Section 213.010(4) defines "disability" as a "physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job." To qualify as a disability giving rise to a protected status under the MHRA, the disability must substantially limit or be perceived to substantially limit a major life activity, such as communication, ambulation, self-care, socialization, education, vocation training, employment, or transportation. See Morgan v. Plaza Motor Co., 166 F.Supp.3d 969, 975 (E.D. Mo. 2015) (granting summary judgment when plaintiff failed to prove disability because there was no evidence of limitation to major life activity). Here, the parties disputed whether Gaal had a qualifying disability.

         Trial courts are required to use Missouri Approved Instructions ("MAI") if an applicable instruction is available. Mo. R. Civ. P. 70.02(b) (2018). MAI 38.01(B) is the applicable instruction for cases alleging MHRA employment discrimination by reason of disability for actions accruing before August 28, 2017, and it reads:

         Your verdict must be for the plaintiff if you believe:

First, plaintiff ["has a (physical) (mental) impairment that substantially limits one or more of plaintiff's major life activities;" "is regarded as having a (physical) (mental) impairment that substantially limits one or more of plaintiff's major life activities;" "has a (physical) (mental) impairment of record that substantially limits one or more of plaintiff's major life activities"], and
Second, such impairment ("would not" "did not") interfere with performing the job in question ("if provided reasonable accommodation") ("and did not require any accommodation"), and
Third, defendant (here insert the alleged discriminatory act, such as "failed to hire," "discharged" or other act within the scope of § 213.055, RSMo) plaintiff, and
Fourth, such disability was a contributing factor in such (here insert the alleged discriminatory act, such as "failed to hire," "discharged," etc.), and
Fifth, as a direct result of such conduct, plaintiff sustained damage.

MAI 7th 38.01(B). The Notes on Use for the first paragraph direct the user to "[s]elect the phrase that applies to the case as supported by the evidence." MAI 7th 38.01(B), Notes on Use 1.

         Here, Gaal tendered a verdict director that included all three alternate definitions of disabled from the first paragraph: has a physical impairment, is regarded as having a physical impairment, and has a record of a physical impairment. BJC tendered a verdict director that included only the first definition: has a physical impairment that substantially limits one or more of plaintiff's major life activities. The trial court ...

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